Dize v. Ass'n of Md. Pilots

• Decision Date: 21 November 2013
• Docket Number: Sept. Term, 2012.,No. 56,56
• Parties: Jennifer Evans DIZE, Personal Representative of the Estate of William Smith Dize v. ASSOCIATION OF MARYLAND PILOTS.
• Court: Maryland Court of Appeals

435 Md. 150
77 A.3d 1016

Jennifer Evans DIZE, Personal Representative of the Estate of William Smith Dize
v.
ASSOCIATION OF MARYLAND PILOTS.

No. 56, Sept. Term, 2012.

Court of Appeals of Maryland.

Sept. 23, 2013.
Reconsideration Denied Nov. 21, 2013.

[77 A.3d 1017]

Michael H. Bereston (Michael H. Bereston, P.A., Annapolis, MD; Robert E. Joyce, Baltimore, MD), on brief, for petitioner.

James W. Bartlett, III (Alexander M. Giles of Semmes, Bowen & Semmes, Baltimore, MD), on brief, for respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and BELL ^*, JJ.

McDONALD, J.

[435 Md. 152]Maritime law has long recognized the “special hazards and disadvantages to which they who go down to sea in ships are subjected,” especially exposure to “the perils of the sea ... with little opportunity to avoid those dangers or to discover and protect themselves from them.” ¹ When maritime workers at sea suffer sickness or injury, they are entirely at the mercy of their employer, and it is often said that they are “ wards of admiralty.” ² Federal law provides certain rights and protections to compensate for those risks. One such measure is the Jones Act, 46 U.S.C. § 30104, which provides a seaman with a cause of action against the seaman's employer for injuries incurred within the scope of employment.

[435 Md. 153]Who is a “seaman”? This is a recurring question in the case law under the Jones Act. The Supreme Court offered guidance in three decisions in the 1990s, but subsequent lower court decisions have resulted in a tempest of varying, and often conflicting, interpretations.³ Although as a state court we do not speak authoritatively on this issue, it is our task in this case to discern what we can from these decisions.⁴

In the complaint under the Jones Act that commenced this case, William S. Dize ⁵

[77 A.3d 1018]

alleged that he was injured as a result of the negligence by his employer, Respondent Association of Maryland Pilots (the “Association”). Whether that claim was properly made under the Jones Act depends on whether Mr. Dize was a “seaman” at the time of the alleged negligence. To distinguish seamen from land-based workers, the Supreme Court has adopted a “rule of thumb” that a seaman must ordinarily have spent at least 30 percent of work time in [435 Md. 154]service of a vessel in navigation. We hold, consistent with the purpose of the Jones Act and guidance of the Supreme Court, that the time Mr. Dize spent maintaining vessels that were dockside or ashore is not to be considered and, accordingly, that the lower courts correctly concluded that he was not a seaman.

Background Remedies for Seamen

Remedies for employment-related injuries of seamen are provided under federal admiralty law rather than state worker compensation schemes. Southern Pac. Co. v. Jensen, 244 U.S. 205, 218, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). Two of those remedies have long existed under general maritime law, but are limited in scope. A third, broader, remedy has been created by statute.

Under general maritime law at the beginning of the 20th century, a maritime worker had two potential claims for injuries incurred during employment in service of a vessel: seaworthiness and “maintenance and cure.” A ship owner has an “absolute, non-delegable” duty to a seaman to provide a seaworthy vessel; liability for an unseaworthy vessel attaches regardless of fault. Chisholm v. UHP Projects, 205 F.3d 731, 734 (4th Cir.2000). The warranty of seaworthiness applies only to vessels that are “in navigation.” Roper v. United States, 368 U.S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1 (1961). “A claim for maintenance and cure relates to the vessel owner's obligation to provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001).

Neither “seaworthiness” nor “maintenance and cure” provided a seaman with a cause of action for negligence of a ship owner. [435 Md. 155]The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903).⁶ congress created such a cause of ACTION WHEN IT PASSED THE JONES Act in 1920. That statute reads, in pertinent part:

A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right to a trial by jury, against the employer.
46 U.S.C. § 30104. To prevail on a negligence claim under the Jones Act, a seaman must show: “(1) that he is a seaman under the Act; (2) that he suffered injury in the course of his employment; (3) that his employer was negligent; and (4) that his employer's negligence caused his injury at least in part.” Martin v. Harris, 560 F.3d 210, 216 (4th Cir.2009).⁷ The term “seaman”

[77 A.3d 1019]

is not defined in the Jones Act. But, as in many cases under the Jones Act, the interpretation of that term is key to the decision of this case.

Mr. Dize's Employment

Mr. Dize initially worked for the Association as a launch boat operator at the Solomons Island Transfer Station in Solomons, Maryland, beginning in the 1980s. In that capacity, he transported pilots to and from large commercial ships traveling on the Chesapeake Bay—a duty that he continued to perform after he was promoted to assistant station manager in 1997. As assistant station manager, Mr. Dize worked every other week but, during the weeks he was on duty, he was on-call all day every day. As will become apparent, the allocation [435 Md. 156]of his work time among the various duties of assistant station manager is significant for determining whether he was a seaman at the time of the alleged negligence in 2007.

During the five-year period prior to his injury, Mr. Dize spent somewhat less than 20 percent of his time operating launches.⁸ He also did maintenance work on the launches, both in the water and while the boats were undergoing overhaul and refits in dry dock. In deposition testimony, Mr. Dize estimated that, while the launches were tied up at the dock, he spent between 42 and 50 percent of his time on maintenance tasks such as painting; sanding; changing propellers, rotors, shafts, and rub rails; replacing zinc anodes; cleaning the boat interiors; and fueling. Relying on its records, the Association also estimated that between 3 and 5 percent of Mr. Dize's time was spent on overhaul and refits while the boats were out of the water. Adding up those estimates, Mr. Dize calculated that well over 60 percent of his time was spent operating, or performing maintenance on, launch boats. Mr. Dize also performed general maintenance on station buildings and property, ordered work supplies and groceries, unloaded trucks, installed rugs, mowed the lawn, and cleaned the docks.

In January 2008, Mr. Dize was diagnosed with silicosis. He thereafter suffered increasing breathing difficulties, required supplemental oxygen to live, and eventually died from his illness in September 2012.

Negligence Action under the Jones Act

On May 22, 2008, Mr. Dize sued the Association in the Circuit Court for Baltimore City, pursuant to the Jones Act, alleging negligence in regard to injuries he suffered from [435 Md. 157]exposure to free silica during a sandblasting project.⁹ The complaint alleged that, as part of his duties in June 2007, Mr. Dize sandblasted paint off the bottom of an Association boat in dry dock, using coal slag abrasive that contained free silica. It further alleged that the Association did not perform adequate occupational safety testing, as required by federal and State work safety standards, to determine whether Mr. Dize was fit to participate in

[77 A.3d 1020]

sandblasting or should have worn a respirator mask while doing so. Because he had previously suffered from lung disease, the complaint alleged, he likely would have been excluded from the work as a result of the test.

In January 2010, both Mr. Dize and the Association filed motions for summary judgment.¹⁰ The Association argued that Mr. Dize was not a seaman for purposes of the Jones Act and therefore could not maintain a negligence claim.

On February 25, 2010, the Circuit Court granted the Association's motion for summary judgment on the Jones Act claim on the basis that Mr. Dize was not a seaman at the time of his injury.¹¹ In doing so, the court concluded that Mr. Dize had not spent 30 percent of his work time in service of vessels in navigation, as required by a “rule of thumb” adopted by the [435 Md. 158]Supreme Court to decide seaman status for Jones Act cases. Mr. Dize appealed. On March 8, 2012, the Court of Special Appeals, in an unreported opinion, affirmed the Circuit Court. At the request of the Association, the court reissued its decision as a reported opinion on May 31, 2012. See Dize v. Ass'n of Md. Pilots, 205 Md.App. 176, 44 A.3d 1033 (2012).

We granted certiorari to resolve whether, in determining Mr. Dize's status for purposes of the Jones Act, work time spent maintaining vessels that are moored, dockside, or ashore is to be counted along with time spent at sea.

Discussion Standard Of Review

A Circuit Court may grant summary judgment if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2–501(f). With specific reference to the Jones Act, the issue of seaman status is a mixed question of law and fact, for which summary judgment is appropriate “where the facts and law reasonably support only one conclusion.” Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997) (citations omitted). Our role is to review whether the Circuit Court's legal conclusions were correct without according any special deference to that court. D'Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d 941 (2012).

Seaman Status under the Jones Act

As indicated above, the Jones Act does not itself define the term “seaman.” Courts have defined the term affirmatively by looking to the...